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7. In all cases not within the exception of the statute, an answer without a verification to a complaint duly verified may be stricken out on motion, and application for judgment, as upon default, may be made at the same time. Drum v. Whiting, 9 Cal. 422.

8. Where the action is against defendants severally liable, a portion only being served with process, the Clerk can, on application of plaintiff, enter judgment, upon default, against the parties served, without regard to the other parties named in the complaint. Kelly v. Van Austin, 17 Cal. 564.

9. Where, in an action against defendants jointly and not severally liable, a portion only of them are served with process, the Clerk cannot, on the application of plaintiff, enter judgment, upon default, against the parties served only. A judg. ment so entered is void. ld.

10. In entering judgments upon default, the Clerk acts in a mere ministerial capacity ; exercises no judicial functions; and must conform strictly to the provisions of the statute, or his proceedings will be without any binding force. Id.

11. In an action upon a verbal agreement to indemnify'a Sheriff for seizing property on execution, the Clerk may enter judgment upon default of defendant, in not answering after his demurrer has been overruled. Stark v. Raney, 18 Cal. 622.

12. Second subdivision.—Where an amended complaint in ejectment sets up title acquired after the commencement of the suit, and a judgment by default is regularly entered, the judgment is valid. In this case, the Court denied a trial by jury, and took proof as to title and possession. Smith v. Billett, 15 Cal. 23.

13. In suit to recover money due on a promissory note, and to establish a lien for the amount upon certain real estate purchased with money advanced by plaintiff to defendant, and for which advance the note was given, the Clerk entered judg. ment by default for the amount of the note. Plaintiff, having exhausted his remedies on this judgment, by execution and proceedings supplementary thereto, ob tained from the Court a decree for the equitable relief sought in the complaint, to wit : for a lien upon and a sale of the real estate : Held, that this decree was coram non judice, and void—assuming the judgment by the defendant to be valid. Such judgment, if valid, terminated the controversy, and whatever related to the merits of the case was merged in the judgment. Kittridge v. Stevens, 16 Cal. 381.

14. Doubtful whether the Clerk could enter judgment, in an action of this nature, without application to the Court. This point reserved. Id.

15. Where default will and will not be set aside. Judgment by default set aside on the ground of surprise. Bidleman v. Kewen, 2 Cal. 248.

16. It is no ground for setting aside a judgment by default, that the defendant was ignorant of the law requiring him to answer in ten days. Chase v. Swain, Administrator, 9 Cal. 130.

17. After the adjournment of the term, a Court loses all control over its judgments, unless its jurisdiction is saved by some motion or proceeding at the time. Shaw v. McGregor, 8 Cal. 521.

18. The only exception is when personal service of summons has not been made, in which case the party, against whom it is entered, may move to set it aside. Id.

19. An order of Court setting aside a default and judgment entered during vacation is regular and correct, when there has been no service of summons upon the defendants. Pico v. Carrillo, 7 Cal. 32.

20. Where two defendants are jointly sued and service had on both, the Clerk of the Court has no anthority to enter judgment by default against one, and his act in so doing is without color of law and void, and may be disregarded or set aside. Stearns v. Aguirre, 7 Cal. 443.

21. A judgment will not be set aside on the application of a creditor of the judgment debtor, upon the ground that the judgment was taken for more than was actually due upon the note, when it appears that a mistake of a few cents only was made in calculating the interest due upon the note. Ziel v. Dukes, 12 Cal. 482.

22. A mere clerical error in the judgment, not affecting the appellant, can be corrected, and is not a ground for reversal. Anderson v. Parker, 6 Cal. 201.

23. Case where the Court below set aside a judgment by default in ejectment, and allowed the landlords of the defendants to come in and defend. Barrett v. Graham, 19 Cal. 632.

24. What a default cures or admits.-A defective allegation of a fact



may be cured by default or verdict, but not so the entire absence of any allegation whatsoever. Hentsch y. Porter, 10 Cal. 555.

25. A default only admits the facts alleged in the complaint. Id. ; Harlan v. Smith, 6 Cal. 173; McGregor v. Shaw, 11 Id. 47.

26. Where a man is sued by a fictitious name, and the return of the Sheriff on the summons shows service on the defendant by his proper name as “ John Doe, alias Westfall," a default being entered, judgment may be rendered against the defendant in his true name, Westfall, without proof that Doe and Westfall are the

Curtis v. Herrick, 14 Cal. 117. 27. Where the complaint avers title as administrator, a default admits it. Id.

28. The judgment against an administrator, though in the form of a common money judgment by default, is valid, its only effect being to establish the validity of the claim. Chase v. Swain, Administrator, 9 Cal. 130.

29. A default on a complaint containing special counts, defectively stated, and also the common counts in assumpsit, properly stated, will support a judgmentthe default being a confession of the indebtedness for the causes and on the accounts alleged in the complaint. Hunt v. City of San Francisco, 11 Cal. 250.

30. Where the summons has been duly served, a judgment by default amounts to a confession on the part of the defendants of all the material facts in the complaint. Rowe v. l'able Mountain Water Co., 10 Cal 441.

31. Where an amended complaint in ejectment sets up title acquired after the commencement of the suit, and judgment by default is regularly entered, the judg. ment is valid. Smith v. Billett, 15 Cal. 23.

32. The want of an allegation of actual ouster in a complaint in ejectment is a defect which cannot be cured by a default taken through the mistake or inadvertence of defendant's counsel. Watson v. Zimmerman, 6 Cal. 47.

33. When Clerk may not enter a judgment.-Upon facts found, whether by report of referee or special verdict of the jury, the direct action of the Court must be invoked before the judgment can be entered. Peabody v. Phelps, 9 Cal. 224.

34. When may, or not, be attacked collaterally:-A judgment by default, when summons has been served on defendant, cannot be attacked collaterally for a mere irregularity of service, or for a defective return. The defendant should assert his rights by appeal from the judgment. Dorente v. Sullivan, 7 Cal. 279.

35. A personal judgment of a Court of general jurisdiction is invalid for the purpose of acquiring any rights under it, when it appears affirmatively upon the face of the record that the Court had acquired no jurisdiction over the person of the defendant. Whitwell v. Barbier, 7 Cal. 54.

36. There is, however, a very decided distinction between want of jurisdiction and irregularity in procuring jurisdiction. Id.

37. In the one case, the judgment can be attacked in any form, directly or collaterally ; in the other, only by a direct proceeding against the judgment in the Court which rendered it, or in an appellate Court upon appeal from the judgment. Id.

38. The true test is, whether the omission be of the form or of the substance of the act required to be performed. Id.

39. Equity will not interfere, when.-If a judgment by default be void because entered by the Clerk without authority, that fact constitutes no ground for equity to interfere. Chipman v. Bowman, 14 Cal. 158.

40. A defendant, having no defense to an action, cannot go into equity and enjoin a judgment by default, on the ground that the Sheriff's return of service on him is false, and that in fact he had no notice of the proceeding. Gregory v. Ford, 14 Cal. 141; Gibbons v. Scott, 15 Id. 286; Logan v. Hillegass, 16 Id. 202.

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CHAPTER III.— Of issues, and the manner of their disposition.
Sec. 151. Issue defined, and their different kinds.

152. Issue of law, how raised.
153. 1888ue of fact, how raised.
154. Issue of law, how tried.
155. Issue of fact, how tried; when issues both of law

and fact, the former to be first disposed of.
156. Clerk shall enter causes on the calendar, and to re-

main until disposed of. 157. Parties may bring issue to trial. 158. Motions to postpone on grounds of absence of evidence,

requisites of $ 151. Issue defined, and their different kinds.

An issue arises when a fact or conclusion of law is maintained by the one party, and is controverted by the other. Issues are of two kinds :

1st. Of law; and,
2d. Of fact.
N Y. Code, $ 248.
§ 152. Issues of law, how raised.

[1854.] An issue of law arises upon a demurrer to the complaint, or answer, (or) to some part thereof. N. Y. Code, $ 249. § 153. Issues of fact, how raised. [1854.] An issue of fact arises :

1st. Upon a material allegation in the complaint, controverted by the answer; and,

2d. Upon new matters in the answer, except an issue of law is joined therein.

N. Y. Code, ý 250.

1. Allegations must be controverted to raise issue.-After judgment by default in ejectment, a jury trial cannot be awarded, there being no issue. Smith v. Billet, 15 Cal. 26.

2. Where the plaintiff sued for a note of six hundred dollars, and the defendant in his answer did not deny anything stated in the complaint, but set up as a counter claim that the plaintiff owed him forty dollars for goods sold, to which the plaintiff did not reply, it was held that no issue arosc. Pardee v. Schenck, 11 How. Pr. R. 500.

§ 154. Issues of law, how tried.

An issue of law shall be tried by the Court, unless it be referred, upon consent, as provided in chapter six of this title.

N. Y. Code, $ 253.

1. Where there is no dispute as to the facts, and the law upon those facts declares a transaction fraudulent, it is not a question for the jury. Chenery v. Palmer, 6 Cal. 122.

§ 155. Issue of fact, how tried; when issues both of law and fact, the former to be first disposed of.

An issue of fact shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as provided in this act. Where there are issues both of law and fact to the same complaint, the issues of law shall be first disposed of.

N. Y. Code, ø 253. As to waiver of trial by jury, see § 179.

1. Jury trial in equity cases. The trial by jury does not necessarily attach to equity cases. Smith v. Rowe, 4 Cal. 7.

2. In chancery proceedings, parties are not entitled to a trial by jury, because it would be utterly fruitless. Walker v.

Sedgwick, 5 Cal. 192; Cahoon v. Lery, Id. 249.

3. The language of the Constitution as to the right of trial by jury, was used with reference to the right as it exists at common law. This right of trial by jury cannot be claimed in equity cases, unless an issue of fact be framed for the jury, under the direction of the Court. Koppikus v. State Capitol Commissioners, il Cal. 248.

4. A Court sitting in equity may direct, whenever in its judgment it may become proper, an issue to be framed upon the pleadings, and submitted to the jury. Curtis v. Sutter, 15 Cal. 263; Weber v. Marshall, 19 Id. 447.

5. Special issues, framed by the Court according to chancery practice, may be tried by a jury in equity cases; but if the failure to present the issues is the result of plaintiff's

's own motion, he cannot be allowed to take advantage of it. Breuster v. Bours, 8 Cal. 505.

6. In chancery cases, the Court below may disregard the verdict of a jury. Goods v. Smith, 13 Cal. 84.

7. In an application for a mandamus to compel a District Judge to sign a bill of exceptions, which the relator alleges he refuses to do, and where the District Judge in his answer avers that he has signed a true bill of exceptions, and that the one presented by relator is not a true bill: Held, that the relator is not entitled to a jury to try the issue. People v. Judge of the Tenth Judicial District, 9 Cal. 21.

8. What are proper questions for a jury.-Where the boundaries of a lot of land granted by an Alcalde are uncertain, the jury should determine the true location of the lot in question. Reynolds v. West, i Cal. 328.

9. The question of the possession and identity of the land should be left to the jury. Ilicks v. Davis, 4 Cal. 69.

io. What is actual and what is constructive possession in many cases, must be a question of fact for the jury. O'Callaghan v. Booth, 6 Cal. 65.

ii. The fact of the dedication of the premises by possession as a homestead, was properly submitted to the jury. Cook v. JeChristian, 4 Cal. 26.

12. Dedication of a street is a conclusion of fact, to be drawn by the jury from the circumstances of each particular case; the whole question as against the owner of the soil being whether there is sufficient evidence of an intention on his part to dedicate the land to the public as a public highway. Harding v. Jasper, 14 Cal. 648.



13. The question of abandonment of a mining claim should be left to the jury, upon the facts adduced in evidence. Waring v. Crow, 11 Cal. 371.

14. The reasonableness of the use of water is a question for the jury, to be determined by them upon the facts and circumstances of each particular case. Esmond v. Chew, 15 Cal. 143.

15. Whether plaintiffs, who had posted notices claiming the water of a certain river, and stating their intention to construct a ditch or flume, and appropriate the water for mining purposes, began their surveys, etc., and prosecuted their work to completion with due diligence, as against parties attempting subsequently to appropriate the water, is a question for the jury, and their verdict, on conflicting testimony, will be conclusive. Weaver v. Eureka Lake Co., 15 Cal. 274.

16. In an action of trespass, the question of damages is a question particularly for the jury. Drake v. Palmer, 4 Cal. 11.

17. The fact whether a structure was a public nuisance is a question, not for the Court, but for the jury, to decide. Gunter v. Geary, 1 Cal. 467.

18. What facts and circumstances constitute evidence of carelessness, is a question of law for the Court to determine. But what particular weight the jury should give to these facts and circumstances, is a matter for the jury. Gerke v. California Steam Navigation Co., 9 Cal. 258.

19. The question of malice in an action for malicious prosecution is one solely for a jury, and the charges must be shown to have been willfully false. Potter v. Seale, 8 Cal. 200.

20. In an action for malicious prosecution of a suit on a bill of exchange which was paid, whether the plaintiffs in that suit knew that the bill was in fact paid, or not, when they sued, is a question for the jury. Weaver v. Page, 6 Cal. 684.

21. Whether such a custom existed, or not, when a custom is about being proven, is a question for the jury to decide. Panaud v. Jones, 1 Cal. 500.

22. The question of notice of dissolution of partnership is a fact for the jury, under the charge of the Court. Rabe v. Wells, 3 Cal. 151 ; Treadwell v. Wells, 4 Id. 463.

23. After judgment by default in ejectment, a jury trial cannot be awarded, there being no issue. Smith v. Billett, 15 Cal. 26.

24. An order of reference to ascertain the amount of damages for the wrongful serving out of an injunction, is in violation of the right to a trial by jury. Russell v. Elliott, 2 Cal. 246.

25. Where an action is brought for the balance of an account, and the answer avers payment by a promissory note, and the plaintiff replies that he was induced to receive the note by fraud, the Court held that it was one of the cases where the party was entitled to a trial by jury, and it could only be referred by consent of the parties. Seaman v. Mariani, 1 Cal. 336.

26. When a party cannot object that his case was not tried by a jury.-A party cannot go on and try his case before a Judge, without objection, and after he has lost it, complain that the case was not tried by a jury. Smith v. Brunnan, 13 Cal. 115.

27. As to facts recurring in the presence of the Court.-A Court does not require the verdict of a jury to inform it of facts recurring in the presence of the Court itself. People v. Judge of the Tenth Judicial District, 9 Cal. 21.

28. Issue of fact cannot be tried in the Supreme Court.—The Legislature has not provided the Supreme Court with à jury in any case, nor authorized it to cause an issue of facts to be made up in this Court and referred to another Court for trial. All issues of fact are to be tried in an inferior Court of this State. Ex parte the Attorney General, i Cal. 87.

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§ 156. Clerk shall enter causes on the calendar, to remain until disposed of.

The Clerk shall enter causes upon the calendar of the Court, according to the date of the issue.' Causes once placed on the calen

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